Political Animal


June 11, 2012 2:18 PM The End of Habeas Corpus?

By Ryan Cooper

US Constitution, Article I, Section 9: “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

Back in 2006, Congress passed the Military Commissions Act, which abolished habeas corpus rights for noncitizens, among other things. This part of the law was overturned in 2008 by the Supreme Court in Boumedine vs. Bush as unconstitutional.

Today, it looks like the Supreme Court gave up on that line of reasoning. Marcy Wheeler reports:

SCOTUS has just declined to take all seven of the pending Gitmo habeas corpus petitions, including Latif and Uthman.
This effectively kills habeas corpus.

The problem here, as Mother Jones’ Adam Serwer puts it, is that the “conservative judges on the D.C. Circuit have interpreted the law in a way that assumes many of the government’s claims are true and don’t have to be proven in court.” Or as the Center for Constitutional Rights puts it:

Today’s decision leaves the fate of detainees in the hands of a hostile D.C. Circuit Court of Appeals, which has erected innumerable, unjustified legal obstacles that have made it practically impossible for a detainee to win a habeas case in the trial courts. The D.C. Circuit, the country’s most conservative court of appeals, has reversed every detainee victory appealed to it by the government, and as consequence, district courts in D.C. have ruled in favor of detainees in only one of the last 12 cases before them.

Over at the American Prospect, Scott Lemieux speculates on how a six-vote coalition (only four votes are needed to ensure a case is heard) might have arisen to deny the cases, and comes to a grim conclusion: “Either way, as of now Boumediene has essentially be reduced to an empty shell, holding out a promise of constitutional protections the federal judiciary has no intention of actually fulfilling.”

Wheeler gives some examples of just what this means:

Consider what SCOTUS just blessed:
  • Holding a person indefinitely for being in the wrong place at the wrong time-including a school, a road, and a guest house-where suspect people are.
  • Holding a person indefinitely based on an admittedly error-ridden report the government wrote up itself.
  • Holding a person indefinitely based on pattern analysis.
  • Completely upending the role of District Court judges in the fact-finding process

Duly noted.

Ryan Cooper is a National Correspondent at The Week, and a former web editor of the Washington Monthly. Find him on Twitter: @ryanlcooper


  • Mitch on June 11, 2012 3:29 PM:

    I think that it's pretty well established that if you aren't American, then you have no rights. Indeed, if you aren't a citizen of the USA, why, you're barely human at all. You're either a socialist piece of Eurotrash, or a Islamofascist terrorist, or a random not-white person good only for working in sweatshops.

    Or at least, that's wht I get from talking to my conservative friends.

  • boatboy_srq on June 11, 2012 4:30 PM:

    Remind me again, which side it is that goes on and on about activist judges?





  • Peter C on June 11, 2012 4:37 PM:

    More evidence of the lasting harm done by the Bush Administration. We can't allow another Republican administration. The stakes are too high.

  • JackD on June 11, 2012 4:52 PM:

    Further evidence that this court practices politics, not law.

  • martin on June 11, 2012 4:53 PM:

    I said it this morning, but have to again: "F*ck them, Just F*ck them."

  • DOC on June 11, 2012 5:23 PM:


  • stratplayer on June 11, 2012 5:42 PM:

    To think habeas corpus was once reverentially referred to as the "Great Writ," meaning that it stood unique among all other writs in its fundamental importance. We are in deeper shit than we know.

  • Josef K on June 11, 2012 6:31 PM:

    Does this mean the government can now start "disappearing" people? Well, they could always do that, its just now those left behind don't have any real recourse.

    This is an abomination, even for our diseased politics.

  • HMDK on June 11, 2012 6:48 PM:

    Josef K, for someone using that pseudonym, you're not really paranoid enough. Heh.
    Seriously, this is absolutely insane,
    But I'll bet we'll see a lot of self-described "lefties" saying that this is just another thing we have to swallow, because the alternative is always worse... which is true.
    But the problem is that it always continues to be true.
    The right is always moving further right, and the advice is always to follow 'em just a little bit further, and THEN the miracle will happen!
    The U.S. is killing it's social safety-net and those voting for the throat-slicing are happy to lift the knives up to their own necks.

  • Doug on June 11, 2012 7:16 PM:

    If I understand this correctly, the ruling by the SC in Boumedine vs Bush declared that part of the Patriot (sic) Act that removed the right of habeas corpus writs for non-citizens to be unconstitutional. Thus, non-citizens retain their right to sue for a writ of habeas corpus.
    However, currently the DC Circuit Court of Appeals is, basically, ignoring that ruling by accepting the Federal governments' arguments as having already been proven and the SC is refusing to hear the appeals. Right, then.
    The judges on the Court of Appeals, and apparently a couple on the SC, deserve impeachment, but that's not going to happen. They CAN, however, be side-tracked by closing the "facility" at Guantanamo and moving those being held there to prisons in the US. After all, the ONLY reason the appeals are being heard in the extremely "conservative" (is THAT what Republicans call activist judges nowadays?) DC Circuit Court of Appeals is because those making the appeals AREN'T IN THE US!
    Okay, then. We re-elect Mr. Obama. Take back the House and, at the very least, maintain our current numbers in the Senate. Add a provision onto the next finance bill to close Guantanamo as a money-saving measure; which would certainly be true. If absolutely necessary run the bill through Congress via reconciliation. Oh, and President Obama needs to appoint as many judges as possible, which will necessitate some, ah, adjustments to the filibuster as it currently operates.
    Just remember, this isn't the first time supposedly "above the fray" judges have played politics and it won't be the last...

  • TCinLA on June 11, 2012 9:47 PM:

    Oh yeah, let's blame the "ultra conservative DC Circuit," never mind that the lawyers orchestrating this assault on the constitution are all in the Obama "Justice" Department. You know, the "liberal" President who arrogates to himself the soul authority to order the assassination of American citizens, who has done nothing to close Gitmo, one of his major campaign promises?

  • DJ on June 12, 2012 11:24 AM:

    Wingnut, wack job, radical ultra-conservatives.

    The ruling makes it possible for you as a citizen to suffer the same fate. As a citizen, being arrested and having my right to Habeas Corpus suspended because I happen to be in the vicinity of a non-citizen out to harm my country is plainly a violation of my Constitutional rights.

    Government has been whittling away at our Constitutional rights for some time. The rulings years ago allowing check points for drunk driving violated our right of search and seizure, it's only gotten worse over time escalating in the last 11 years primarily under "Dubya" and his Patriot Act.

    This should definitely be of concern to anybody that understands the Constitution and that the loss of your rights is of grave importance, especially when that loss occurs without amending the Constitution. This isn't about "them" the non-citizens, this is about us the citizens!